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Human rights victory for BNP bus driver

The BNP has been a relentless opponent of Human Rights Act and its manifesto for the 2010 General Election made no less than three separate declarations of its intention to scrap the Act and abrogate the European Convention of Human Rights which it described charmingly as being, “exploited to abuse Britain’s hospitality by the world’s scroungers.”

This has not stopped the European Court of Human Rights (ECtHR) riding to the rescue of one of their erstwhile councilors in Redfearn v United Kingdom

The ECtHR, by a majority of four to three (with British judge Sir Nicolas Bratza being one of the dissenters), decided that, despite the margin of appreciation, the positive obligation placed on the UK by Article 11 (right to free assembly and association) meant that a person dismissed on account of his political beliefs or affiliations should be able to claim unfair dismissal despite not having the qualifying one year’s service then applicable.

Bradford Bus driver

Arthur Redfearn was a driver for Serco Ltd who, in turn, provided services for Bradford City Council. He was also elected as a Councillor for the BNP while he was an employee.

He was dismissed after six months employment for a number of reasons including that he would present a risk to the health and safety of his co-workers and passengers and jeopardise the reputation of his employer. All the reasons were connected with his membership of the BNP.

In one of the more striking twists in the case, he claimed race discrimination.

He lost before the Employment Tribunal (which found dismissal was on health and safety grounds) but won at the EAT before losing again before the Court of Appeal which determined that, properly analysed, this was a complaint of discrimination on political grounds which fell outside anti-discrimination laws.

It was this gauntlet that the ECtHR picked up. They determined that a claim for unfair dismissal would be an appropriate remedy for a person dismissed on account of his political beliefs or affiliations. The Article 11 considerations could then be taken into account in deciding whether the dismissal was justified. This was excluded in this case by the one year service requirement in UK law adopted to provide flexibility in the labour market. However, the majority noted that this was waived in discrimination and other cases and determined that it was incumbent on the UK to create a further exception to the one year qualifying period for claims of dismissal on the grounds of political opinion or affiliation or to create a free standing cause of action to the same effect.

The minority contended that it should be left to Parliament to determine what exceptions there should be to the one year service rule and noted that the current list of exceptions was not chosen randomly and concluded that the UK had not exceeded the margin of appreciation that should be afforded to it in cases of this sort.

Myriad mysteries

The ECtHR has not found that Mr Redfearn was discriminated against or unfairly dismissed, merely that he should be given the opportunity to argue this point before an Employment Tribunal.

This case similarly does not determine that BNP members, candidates or councilors cannot be dismissed from their posts but the reasons for the same will have to be substantial.

This is an unhappy case which shows all the hallmarks of not having been properly argued at first instance (this is no comment on the “Rolls Royce” treatment it received in the Court of Appeal).

Serco were also treated as a private employer when it was at least arguable that they were an emanation of the state providing bus services as they were as West Yorkshire Transport Service. At the time the Claimant was dismissed, he delivering mail for the Council. It could be that the irony of seeking to rely on the direct effect of an EU Directive was just one embarrassment too many for the BNP.

Dismissing Councillor Redfearn for health and safety reasons also appears risible. The heart of the problem with the Claimant’s continuing employment was surely encapsulated by the EHRC, in their submissions as an Intervener before the ECtHR when they looked at the matter from the perspective of business users such as the Asian parents who were expected to entrust their children to the Claimant and the Council and Serco who were seeking to provide services to the public in a non-discriminatory way.

More difficult but not impossible

It should be noted that this case is only concerned with the dismissal of employees and not other detriments they may suffer. Its import is also said to be restricted to cases where the employee has not acquired the necessary service to ground an application of unfair dismissal. However, in the six and a half years this case has taken to wend its way from The Strand to Strasbourg, the government has now raised the minimum level of service to two years from 6 April 2012.

It is an open question whether a claim of dismissal in these circumstances could be brought by a worker and not an employee.

One curiosity of this case is that at the time the case was argued before the Court of Appeal, Mummery LJ was able to characterize the BNP as a party that confined its membership to white people. As a result of the highly contentious proceedings brought against the BNP by the Equality and Human Rights Commission, the history of which is set out in the Judgment of Moore-Bick LJ this is no longer strictly true. This may make it more difficult to dismiss members of the BNP from sensitive posts.

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18 comments

As so often there is a difference between the law and what many people would regard as fairness.

As a citizen I think it is wrong for anybody to be dismissed because of his or her political beliefs, providing these do not affect the performance of the job. I’m old enough to remember McCarthyism.

It’s disappointing that your rather slanted summary failed to mention that Mr Redfearn had been regarded as a first rate employee. He never allowed his views on race and immigration affect his work.

As for the law,I appreciate that he was on weak ground as he didn’t satisfy the minimum one year rule. His claim for racial discrimination seemed a way rounfd this and at first blush sounds preposterous. But on reflection was it? As I understand it the Showboat case gave a very wide definition to the term “racial” and one wonders to what extent the Court of Appeal’s decision in Mr Redfearn’s case was influenced by the political Zeitgeist at the time.

It is all very well arguing the “margin of appreciation”, but if you told the man on the Clapham Omnibus that he had freedom of association and political belief -but only after two years’ employment, he might well be rather shocked.

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Theo Hopkinssays:

Ho, hum!

This must really upset UKIP and the Daily Mail.
Ummm…. Like the Mail (where I saw this story) have not been able to call the ECtHR “unelected” or making “diktats”.
As to Cameron, is he going to feel physically sick and talk about a “foreign” (as opposed to international) court?

The right judgement in my opinion.

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Paul de Mellosays:

Hello, I think Northern Ireland has protection for ‘Political Opinion’, does anyone think if this works in the same way as this ruling may suggest is need in England? I think i read on this blog about a ‘white lilly’ prisoner case.

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Andrewsays:

This wretched litigation would never have arisen if Bradford had backed Serco and both had told Unison to get lost.

There was no danger to the children from Mr Redfearn; his record before he became a candidate makes clear that he did not let his ghastly political opinions affect his work. You don’t have to like the people, big or small, whom you encounter while you earn your living.

As for the argument that they would be at risk now that he had “outed” himself: come on. Imagine a driver whose route led him through a mainly white housing estate with a big BNP vote, perhaps a BNP councillor. The reaction if the council or SECO decided that it would be safe not to have a black or Asian driver can more easily be imagined than described.

As it is, unless the Grand Chamber takes the case and reverses it, there will have to be the same sort of protection for political belief and political associations as there is for religious. Not before time and after it happens we will wonder why it did not happen years ago.

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Chrissays:

Remember “one mans meat is another’s poison”

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Jim Fowlersays:

The basis of this case is the right of any Citizen to hold a view. Once you start denying the right to employment or participation in the political process then the only outlet is the one taken by Militants.
One of the original complainants was the Trade Union how many years did it take them to be accepted?
In defending this Man’s right to hold his views we avoid the abyss

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Rustysays:

We have lost our countries because of mass-immigration and these leftists are doing everything in their power to ban parties who oppose it! who are the real racists because the way wee see it what you are doing is far worse.

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Andrewsays:

How about a simple enactment to the effect that to dismiss an employee for being or not being in any lawful organisation – or for refusing to disclose whether or not s/he is a member of any lawful organisation – is automatically unfair dismissal?

That would protect freedom of association and personal privacy. It may not be necessary in Strasbourg terms to go that far but there is no reason not go further than ECHR requires.

Redfearn’s “rights” seem to hinge on the denial of pretty much everything to everyone else (ethnic minorities, faith groups, dissenters). I am not fan of Bratza but he may have made the right call here.

Who, in the entire UK gets awarded a 2 year contract nowadays? Has UD effectively been removed from statute because of the government’s new time limit?

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Brett Dunbarsays:

Most employees are on open-ended contracts, rather than limited term contracts. Full employment rights vest after the requisite period of employment.

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forcedadoptionsays:

I reckon it would be great for business if there was no such thing as unfair dismissal.If your local butcher whom you have patronised for years suddenly starts serving inferior meat or if you prefer the supermarket up the road,you are not obliged to continue to visit this butcher’s shop.An employer buys services so why should he/she be forced to continue to pay for those services if he no longer wishes to do so?Small businesses with only two or three staff can be wrecked by one bad employee and frquently are ! At the very least a business with less than say six employees should be free from the irksome restrictions that stop potential entrepreneurs from ever getting started and that sometimes bankrupt those that do !
No! I have no axe to grind as my companies employ too many people to ever be described as small !Luckily when I started moe than 50 years ago I never had to face the daunting sets of regulations that put off so many budding entrepreneurs today.

Better still, outlaw the concept of employment altogether so that every worker becomes a self-employed contractor. The master-servant relationship that underpins the employment contract is an anachronism.

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Andrewsays:

“Freedom [of thought] is always and exclusively freedom for the one who thnks differently” – Rosa Luxemburg

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Disclaimer: This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.